UK: Construction (Design And Management) Regulations 2015 – Practical Considerations

The revised Construction (Design and Management) (CDM) Regulations 2015 ('the new Regulations') come into force on 6 April 2015. The original CDM Regulations were introduced with the main objective of improving health and safety on site and reducing the risks to those involved with construction projects (at all stages).

The new Regulations will require clients (on existing and new projects) to appoint a "principal designer" and "principal contractor" on projects where there is likely to be more than one contractor. 

WILL THE ROLE OF CDM CO-ORDINATOR BECOME EXTINCT? 

The role of the CDM Co-ordinator (CDMC) will be replaced with that of the "principal designer", who is intended to be part of the existing design team. The HSE (L) Series guidance states that a designer may be the architect, quantity surveyor, consulting engineer, interior designer, temporary work engineer, chartered engineer or anyone else who specifies or alters the design and further that a principal designer is the designer with "control over the pre-construction phase of the project". A consultant appointed solely as CDMC will therefore not fulfil the criteria. The change is intended to encourage an integrated approach to risk management and increased co-ordination at the pre-construction phase of the project.

In reaction to this, some CDMCs are proposing to re-label themselves as principal designers, even where they have no involvement in the design or control over the pre-construction phase. The rationale for this is that they have the requisite health and safety knowledge and experience that designers do not have, and that clients need to receive impartial, third party advice.

However, it will be the client's responsibility to appoint a principal designer. As explained above, if a consultant acting solely as CDMC is appointed as the principal designer, this requirement will not be satisfied. Consideration should be given to whether the client can allow a member of the design team to sub-contract the role of principal designer to a third party. The HSE consultation paper suggests that this is likely to happen in practice, but this does not sit comfortably with the wording of the new Regulations.

NOVATION: WHAT HAPPENS WHEN THE APPOINTMENT OF A CONSULTANT ACTING AS SAY BOTH ARCHITECT AND PRINCIPAL DESIGNER IS NOVATED TO THE CONTRACTOR IN A HYBRID DESIGN AND BUILD CONTRACT?

Under the new Regulations, the client will have a continuing duty to ensure arrangements are put in place to manage health and safety risks. In order to achieve this, the HSE (L) Series guidance suggests that the role of principal designer will continue for the duration of the project. So what happens when the architect's appointment (acting as principal designer) is novated to the contractor?

The answer may be as simple as the client entering into two separate appointments with the architect (a) as designer and (b) as principal designer, with only the architect's appointment as designer being novated to the contractor. This should ensure that the client's continuing obligations in respect of health and safety are met.

If the architect's appointment is subsequently terminated by the contractor, is it appropriate for the architect to continue the role of principal designer? The architect does still qualify as having had control during the pre-construction period so, potentially, yes. Assuming that all parties are comfortable with the architect acting on both sides of the project, albeit in different capacities, this may work.

To muddy the waters, the new Regulations refer to the situation where a principal designer's appointment concludes before the end of the project. In such a situation the principal designer has an obligation to make sure that the principal contractor is brought up to speed on all health and safety matters and that the Health and Safety File is passed to the principal contractor to complete. It is unclear in what circumstances this will be permitted.

Rather than risking the client taking on the principal designer's duties by default after novation of the consultant's appointment, a possible alternative is to choose one of the consultants whose appointment is not intended to be novated to the contractor to act as principal designer – as long as they are a "designer" with "control" of the pre-construction phase.

TRANSITIONAL PROVISIONS

The new Regulations contain transitional provisions to cater for projects commenced before 6 April 2015 and we summarise these below.

In practice, clients having to replace an existing CDMC with a principal designer may face problems in terminating a CDMC's appointment. This may not be an issue where the CDMC is already acting as a designer in control of the pre-construction phase of a project – in this situation the parties could vary the appointment accordingly. However, each case must be looked at individually.

FINAL THOUGHT

The intention behind the new Regulations was to simplify the Construction (Design and Management) Regulations 2007 and to enhance the coordination between those involved in a project at the pre-construction phase in managing health and safety risks. However, the new regulations do appear to be lacking in detail in certain areas to ensure a smooth, trouble free transition from the old to the new regulations.

Only time will tell how the industry will interpret some of these grey areas in the new Regulations and the HSE (L) Series guidance. In the meantime, don't forget to update your contracts and appointments to reflect the new regime from 6 April 2015.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.